This is an appeal from a conviction for murder. The jury found appellant guilty and assessed punishment at life imprisonment and a fine of $5,000.00.
Appellant advances two points of error. We overrule both arguments: that the evidence is insufficient to support the conviction and that the trial court erred by not submitting a charge to the jury on the theory of self defense.
At the guilt/innocence phase of trial there was testimony from several law enforcement officers. Bandera County Deputy Sheriff Milton W. Kaiser, Jr. testified that about 7:00 p.m. on August 21, 1988, he was actively seeking a reported suspicious vehicle, a 1978 burgundy Chrysler Cordova. He was in his patrol car south of Medina on Hwy. 16, when he saw the wanted automobile on FM Rd. 2107. Kaiser immediately notified fellow Deputy Sheriff Joe Rodriguez II. Kaiser arrived after Rodriguez had stopped the Chrysler and had appellant at the rear of that car.
The lawmen had been looking for two men in the Chrysler since Rodriguez had been advised by a local citizen, Tommy Adams, that two suspicious persons in that car were asking directions to a certain ranch, the Lloyd Ranch. Adams reported the make of the car and that it had Oklahoma license tags. Because Rodriguez smelled alcohol on appellant, who was alone in the vehicle, he asked appellant to step out of the car. He then determined that appellant's driver's license from Alabama had been suspended.
When Kaiser arrived, he asked appellant "where his friend was." He testified that appellant told him Wright had gotten out of the car and run. Kaiser looked into the automobile, where he saw the butt of a gun sticking out from a towel on the passenger side of the front seat. He retrieved the five shot revolver and saw that all five cartridges were spent. It is undisputed that this was appellant's gun and that appellant killed Gerald Wright.
Kaiser testified that many items were scattered about the automobile. Among those were a wallet and "a bunch of papers" belonging to the deceased, as well as money and items of clothing and shoes scattered about. Also found were a .22 caliber pistol in a box and a pocket notebook with appellant's name on it. The notebook contained a sketch of a map showing the location of the Lloyd Ranch, the automobile being stopped about twelve to fifteen miles from the ranch. Appellant *Page 923 was given his Miranda rights.1
According to Rodriguez, appellant told him that "Wright had jumped out of the vehicle and headed up toward the Lloyd Ranch to pick up the vehicle." He said that later, however, appellant changed his statement and said appellant had fired the pistol ("fired some rounds"), that there had been a struggle between the two, and that Wright had tried to "rape" appellant. Rodriguez emphasized that appellant told him two different stories. The first was that Wright had gone to pick up a truck on the Lloyd Ranch which appellant was purchasing, and presumably was following on the road behind appellant. The second story was that Wright had tried to rape him and that he shot Wright. Based on the first version, a suspicious vehicle lookout for a tan Ford or pickup was dispatched to other officers.
Appellant subsequently told Rodriguez that Wright was driving the Chrysler when suddenly Wright "grabbed" appellant's penis. The car had come to a near stop, he said, due to car trouble. Appellant, a 50-year-old man, was wearing only shorts with a .38 caliber gun in his back pocket and was barefooted. He said he left the barely moving car and ran. He said Wright chased him. Wright was barefooted but otherwise fully dressed. Appellant told the officer that Wright caught him, and they struggled. It was shown that Wright weighed only 135 pounds. Appellant then shot Wright five times. He told the officer he "jumped in the car and headed toward Medina." Appellant told the officer he was going to stop and report the shooting after he got back to Bandera. It was shown that he would first travel through Medina before arriving at Bandera, which was several miles farther. In his first version, appellant told Rodriguez that it was Wright who first got out and ran from the car, and that the shots were fired at Wright as he ran.
James McMillan, an investigator with the Texas Narcotics Task Force, testified that three bullets were recovered from the body at the autopsy. There were five bullet wounds and two exits holes. The bullets and shells were introduced into evidence. McMillan said appellant related to him that it was Wright who jumped out of the car and ran. Appellant said he pursued Wright, and the two men got into a fight. Appellant told McMillan he pulled the pistol from the back pocket of his shorts, and while running away from the deceased, he shot over his shoulder. He then ran to the car and left the scene.
Dr. Tommy Brown from the Bexar County Medical Examiner's Office testified that one bullet went straight across the midline of Wright's back. "The gun barrel was placed against the back when it was fired." He verified this shot in the back was a contact wound. Another bullet traveled up and angled; thus, he said, the deceased could have been on the ground when that bullet entered, or the shooter could have been lying down and shooting up. The same was true of the next bullet which also went upward and back. In none of appellant's versions was he lying on the ground. It was the bullet which damaged the aorta that probably caused death. Two of the bullet wounds displayed little bleeding, indicating death had already occurred when the last two bullets entered.
Texas Ranger Joe Davis testified that appellant told him he met the deceased in Del Rio after appellant was released from jail. Appellant was arrested at the border check from Mexico because license tags on the 1984 Mercedes automobile he drove did not belong to it. It was shown that appellant drove a "friend's" car without permission from South Carolina to Mexico after he had removed the original tags and replaced them with ones he stole. Appellant told Davis he met another inmate in jail and that the prisoner offered to sell him a pickup for $500.00. According to appellant, the vehicle was located on the Lloyd Ranch and he agreed to purchase it. Appellant told Davis that he met Wright at a *Page 924 motel, and Wright agreed to drive appellant to the ranch to get the pickup. Davis determined that, in fact, the pickup did not exist.
Before Ranger Davis took a written statement from appellant, he and other officers, accompanied by appellant, attempted to locate the body of Wright. He said appellant reported he could not remember where the body was, and he led the officers all around the area. The Ranger said that appellant always led the searchers away from the body, which was not located for several days. It was a father and son who came upon it in an isolated place at the north fork of the Medina River, face down in water.
Davis read the statement into evidence without objection. It outlined how appellant met the deceased and their coming to Bandera County. It stated they became lost after buying some gas and beer, and they asked Tommy Adams for directions. Wright was driving the Chrysler when they came to a dirt road. The statement continued:
* * * * * * Appellant testified at trial. He said that after they drove a mile or two in the dirt road, "all of a sudden Mr. Wright started screaming and he pulled his shoes and socks off and throwed them in the back . . . just screaming, just hollering, and then he started pulling stuff out of his pockets and throwing all over the place . . . after he got through pulling his stuff and throwing it on the floor, or all over the car,he reached and grabbed me . . . by the penis again." (emphasis added)All of a sudden Gerald went bazerk (sic) and started pulling his shoes and socks off. He was pulling things out of his pockets and throwing them in the car. He said he wanted my body or something like that and then grabbed my penis. (emphasis added) The car had quit running and was coasting down the road. I pushed Gerald away and jumped out of the car. I ran off to my right into a very shallow creek. Gerald caught me from behind and was holding on to me and tried to grab my penis again.
I tried to get away from him but couldn't. I remembered I had a pistol in my right back pocket. I was able to get it out and started shooting back toward Gerald. Gerald had let loose. I shot back at him until the gun was empty. It holds five shots.
I then ran back to the car. I didn't know where Gerald was or if I had hit him. I turned right and was headed back to the drivein service station where we bought beer. I was going to report what happened to the police. I got stopped before I got to the service station by a Deputy Sheriff who arrested me.
Appellant testified he jumped from the Chrysler and was pursued by Wright. "He was behind me and he put his armsaround like that with his hands down there . . . my penis . . .yes, sir, he touched it." (emphasis added)
I was trying to elbow, trying to get loose, move my arms, and I finally broke away and when I went forward I happened to think I had that pistol in my pocket and I pulled it out and I guess shot backwards just like that. I didn't even look or nothing, and then after I got through firing I ran back to the car and looked in there and the keys was still in there and I turned around right there on that spot and came back out.
Appellant said he was going to the service station on the main road because that was the only place he knew to go and that he was "in a state of shock." He denied that he had led the deceased to believe "he could do that." He denied his intent had been to rob the deceased and to kill him, leaving the body in an isolated wilderness area, which was the State's theory.
When both sides closed at the guilt/innocence phase of trial, the trial court asked counsel for objections to the proposed jury charge. Defense counsel responded:
*Page 925We feel that we have met the burden of showing self-defense issue and that the
burden is now upon the State, as provided in several cases, which I would like to tender to the Court regarding self-defense and the burden then shifts to the State to disprove the fact that self-defense occurred out there, Your Honor. These are the leading cases from the most recent down through the years. It's our belief that we have raised an issue of self-defense, Your Honor, and we're moving that be included within the charge.We also would ask leave of the Court . . . for an instructed verdict in that the State of Texas has not met the burden of showing evidence sufficient to overturn the issue of self-defense in this case. There is no uncorroborated or any other evidence by the State of Texas presented to show that it was not self-defense upon the Defendant in regards to this incident and I believe that both case law that you have there, and request the Court to look it over, states that as a matter of law the trier of fact then has to find that the State has failed to meet its burden in overturning the issue of self-defense.
The trial court overruled the motion regarding the jury charge. Defense counsel stated that "the Court was provided a copy of it from McClung's as to what we urged as an issue of self-defense. I would like to also have the right to file a formal Bill of Exception in regards to this."
This ended the brief dialogue regarding a jury charge on self-defense. There is nothing further in the record from appellant. Article 36.14 of the Texas Code of Criminal Procedure provides in part:
. . . Before said charge is read to the jury, the defendant or his counsel shall have a reasonable time to examine the same and he shall present his objections thereto in writing, distinctly specifying each ground of objection. Said objections may embody errors claimed to have been committed in the charge, as well as errors claimed to have been committed by omissions therefrom or in failing to charge upon issues arising from the facts, and in no event shall it be necessary for the defendant or his counsel to present special requested charges to preserve or maintain any error assigned to the charge, as herein provided. The requirement that the objection to the court's charge be in writing will be complied with if the objections are dictated to the court reporter in the presence of the court and the state's counsel. . . .
Appellant argues on appeal that his general objection to the omission of a jury charge on "self-defense" was sufficient to preserve error. We do not agree. The Court of Criminal Appeals discussed article 36.14 in Pennington v.State, 697 S.W.2d 387, 390 (Tex.Crim.App. 1985):
* * * * * * *Page 926 An examination of the objection made by the appellant does not show that he distinctly specified to the trial judge (and to the record for appeal purposes) that he was objecting to the omission of a jury charge on self-defense because theevidence showed that appellant used deadly force to prevent theimminent commission of sexual assault. This is the "objection in writing" required by article 36.14 which must preserve any alleged error. The objection must be specific and complete within the record on appeal to preserve alleged error. This specific ground of objection to the omission is reflected for the first time in appellant's brief in this case. This kind of error presented on appeal must be the same as the objection raised before the trial court. Pennington, 697 S.W.2d at 390. As previously found, the objection was a general one that a jury charge on "self-defense" was omitted. There was no reference to sexual assault.This article is mandatory and there must be strict compliance with its provisions to warrant review [by the appellate court]. (citations omitted)
The real purpose of this enactment is to enable the trial judge to know in what respect the defendant regards the charge as defective and to afford him an opportunity to correct it before reading the charge to the jury. (citations omitted)
This article serves a statutory purpose in preventing the trial judge from being "sandbagged" and in preventing unnecessary reversals. (citations omitted) It is a statute which the courts can neither ignore nor emasculate. (citation omitted)
Thus as a predicate for complaint to a jury charge on appeal the accused is required to distinctly specify each ground of objection. (citation omitted) To constitute a valid objection to jury instructions, the objection must be specific and clear enough to apprise the trial court of the nature of the objection. (citations omitted) If the objection is not specific enough, nothing is presented for review. (emphasis added) (citations omitted)
It is clear then that a general objection which does not distinctly specify the claimed error in the charge is not sufficient to preserve error. (citations omitted) (emphasis added)
To clarify further, the justification chapter of the Texas Penal Code, chapter nine, demarcates many bases which may warrant the use of force. TEX.PENAL CODE ANN. § 9.31 (Vernon 1974) permits the use of force (but not deadly force) by a person against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force. In the instant case the appellant employed deadly force. He argues on appeal his action was justified under section 9.32, which provides in part:
A person is justified in using deadly force against another:
(1) if he would be justified in using force against the other under Section 9.31 of this code;
(2) if a reasonable person in the actor's situation would not have retreated; and
(3) when and to the degree he reasonably believes the deadly use is immediately necessary:
* * * * * *
(B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery. (emphasis added)
This appellate court does not have before it the "McClung's copy" of a charge, as a requested charge, nor was there any allusion to "the prevention of the imminent commission of sexual assault" in the article 36.14 objection as required.
Self-defense as an issue in a criminal trial must be connected to and arise from a unique reason granted by statute in Texas. In most self-defense situations when deadly force is used, the reason arises from section 9.32(1), (2), (3)(A) — "to protect himself against the other's use or attempted use of unlawful deadly force." Thus it is readily perceived why a specific basis for a self-defense jury charge must be presented when objection to the omission of such a charge is made. Article 36.14 mandates such specificity. There is nothing in the record to indicate appellant enunciated in his dictated "written objection" a specific and distinct basis for the self-defense charge which he asserts on appeal. Further, there are no refused instructions which have been certified and filed in the record. See TEX.CODE CRIM.PROC.ANN. art. 36.15 (Vernon Supp. 1989). Appellant in the present case generally objected that a jury charge on self-defense had been omitted and did not distinctly specify that the jury charge on self-defense arose because of an imminent sexual assault on appellant.
If the statutory requirements of articles 36.14 and 36.15 of the Texas Code of Criminal Procedure are not met, the appellate court will reverse only if an error created such harm that the record shows that the defendant has not had a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (opinion on rehearing); TEX.CODE CRIM.PROC.ANN. art. 36.19 (Vernon 1981); Warren v.State, 764 S.W.2d 906, 908 (Tex.App. — Corpus Christi 1989, pet. ref'd). The question is whether the evidence raised the *Page 927 issue of an imminent sexual assault so as to justify the use of deadly force.
We will examine the evidence to determine whether a jury charge on self-defense based on imminent sexual assault should have been submitted. If it should have been submitted, then we would determine whether appellant was harmed by its omission.See Almanza, 686 S.W.2d at 172. Sexual assault is defined in TEX.PENAL CODE ANN. § 22.011 (Vernon 1989):
* * * * * *(a) A person commits an offense if the person:
(1) intentionally or knowingly:
(A) causes the penetration of the anus or female sexual organ of another person who is not the spouse of the actor by any means, without that person's consent;
(B) causes the penetration of the mouth of another person who is not the spouse of the actor by the sexual organ of the actor, without that person's consent; or
(C) causes the sexual organ of another person who is not the spouse of the actor, without that person's consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor. . . .
(b) A sexual assault under Subdivision (a)(1) of this section is without consent of the other person if:* * * * * * When appellant's statement and testimony are accepted as true, it is shown that the deceased said, or screamed, "I want your body," or "something like that." Appellant said that the deceased "grabbed" the penis of appellant at least two times. It is shown that the deceased "touched" appellant "down there." It was not shown that the deceased was nude or that his shirt and pants were discarded. In fact, the evidence showed that his pants were not unzipped. The evidence further showed that appellant's shorts were not removed, nor was an attempt made to remove them. Therefore, the "grabbing" was through the material of the shorts. It was not shown that the slightlybuilt middle-aged deceased carried a weapon or threatenedviolence.(1) the actor compels the other person to submit or participate by the use of physical force or violence;
(2) the actor compels the other person to submit or participate by threatening to use force or violence against the other person, and the other person believes that the actor has the present ability to execute the threat; . . .
Appellant relies on Romero v. State, 663 S.W.2d 121 (Tex.App. — Houston [1st Dist.] 1983, pet. ref'd). In that case, although the facts are not set out in the opinion, the evidence obviously gave rise to a jury charge on self-defense, including threats to take the life of the defendant, a woman, or to do her serious bodily injury, as well as her justification to use force against the other person to protect herself against the other person's use or attempted use of unlawful force. What was missing in that case was a jury charge on her justification to use deadly force to prevent rape. From the opinion it is clear there was sufficient evidence of attempted rape since the jury charge under section 9.31 specifically referred to the "attempted use of unlawful force, in this case rape." The error of that trial court was in not submitting that theory of self-defense pursuant to section 9.32 as required by that statute and as requested by the defendant, and not section 9.31, the application of which wrongfully precluded the use of deadly force by that woman defendant. Unlike the court in omero, we find no evidence of rape or attempted rape.
At most the evidence in the present case shows an assault governed by TEX.PENAL CODE ANN. § 22.01 (Vernon 1989), which provides in pertinent part:
(a) A person commits an offense if the person: *Page 928
(1) intentionally, knowingly, or recklessly causes bodily injury to another . . .; or(2) intentionally or knowingly threatens another with imminent bodily injury . . .; or
(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.
The above assault offenses are designated as misdemeanors. Since there was no testimony by appellant and no other evidence that the deceased caused bodily injury to him, or that he threatened bodily injury to appellant, the third defined assault would apply. "Grabbing" the penis of appellant and "touching" the organ through the clothing of appellant would authorize the application of that assault statute if appellant had not used deadly force. However, since the gun carried in the back pocket of his shorts was used, the court could not properly submit that charge as the evidence precluded it.
If no proper objection as required by article 36.14 was made at trial, as here, an accused will obtain a reversal only if the jury charge error is so egregious and created such harm that he has not had a fair and impartial trial. SeeAlmanza, 686 S.W.2d at 171. We have looked at the state of the evidence, and we find that the incident recounted by appellant in his statements to the officers, his written statement, and his own trial testimony did not rise to the level of a sexual assault or an attempted sexual assault as required for the use of a deadly weapon. TEX.PENAL CODE ANN. § 9.32 (Vernon 1974). Thus there is no error in the jury change of a "fundamental nature." We hold the trial court did not err in not submitting a jury charge on self-defense based on imminent sexual assault according to the definition of sexual assault. In this record there is no evidence that the use of deadly force by appellant was immediately necessary to protect himself against the imminent commission by the deceased of sexual assault. The second point of error is overruled.
The first point of error challenges the sufficiency of the evidence to support the conviction. When reviewing sufficiency of the evidence, this court is bound to review the evidence in the light most favorable to the jury's verdict. We must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Ibanez v. State, 749 S.W.2d 804, 806 (Tex.Crim.App. 1986); see Jackson v. Virginia,443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
Appellant relies upon Palafox v. State, 608 S.W.2d 177 (Tex.Crim.App. 1980) for the proposition that the State is bound by its introduction of appellant's written statement and other exculpatory matters because it failed to disprove those assertions beyond a reasonable doubt. The rationale is that the evidence therefore is insufficient because the State failed to disprove that appellant was justified in using deadly force (shooting the deceased) to repel an imminent sexual assault by the deceased. We first rule that Palafox and other cases of like reasoning have been overruled by the enactment of TEX.R.CRIM.EVID. 607. See, e.g., Ibanez, 749 S.W.2d at 807, n. 3; Samples v. State, 762 S.W.2d 751, 753 (Tex.App. — Fort Worth 1988, no pet.). After the promulgation of rule 607, the State is no longer required to disprove exculpatory statements introduced by the State because the rationale, if any, has been destroyed by rule 607.Samples, 762 S.W.2d at 753.
We have earlier ruled that the evidence, exculpatory or otherwise, did not demonstrate an imminent sexual assault, as that offense is described statutorily in section 22.011 of the Texas Penal Code.
Applying the required standard of review, we find that any rational trier of fact could have found the essential elements of the crime of murder beyond a reasonable *Page 929 doubt in this case. The evidence is sufficient to support the conviction.
The judgment is affirmed.